Supreme Court

My latest column that run Friday, October 5, 2018 in the Lewiston (Idaho) Tribune.

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Most Americans today won’t recognize his name. When he resigned in disgrace from the U.S. Supreme Court in 1969 he mostly disappeared from public life, remembered now only as a footnote in the evolving story of increasing partisan hostility over membership on the highest court in the land.

It wouldn’t be correct to say that the politicization of the court began with Abe Fortas – judicial nominations are and have always been inherently political – but what happened to Fortas does provide a cautionary tale for today’s Senate as it struggles with the tortured process of assessing Judge Brett Kavanaugh’s fitness for a lifetime appointment.

Justice Abe Fortas

Fortas, like Brett Kavanaugh, was not merely a creature of the political process but a deeply partisan political player who, like Kavanaugh owed his appointment to a flawed process engineered by a flawed president.

Fortas was, like Kavanaugh, a Yale Law grad, and was one of the bright young lawyers who populated the administration of President Franklin Roosevelt. In the 1940s Fortas helped found a high-powered D.C. law firm – today’s Arnold and Porter – where he represented deep pocket corporate clients and maintained his extensive and lucrative political connections.

When his friend Lyndon Johnson needed legal help to make certain his contested 87-vote victory in a 1948 Texas Senate race would hold up under scrutiny he called Fortas. After Johnson won a landslide election as president in 1964, like most presidents he wanted to put his mark on the Supreme Court. Johnson being Johnson, he literally forced Associate Justice Arthur Goldberg off the court in order to appoint his pal Fortas. He was confirmed and that decision seemed, briefly, to cement a liberal lean to the Supreme Court for a long time to come.

But, in a variation of the old line that you can make God laugh by telling him your plans, Johnson – and Fortas –overreached. Badly. When, near the end of Johnson’s presidency in 1968, Chief Justice Earl Warren announced his retirement, LBJ was certain he could replace Warren as chief justice by ramming a Fortas nomination through a Senate controlled by Democrats. Shades of the current controversy – Johnson insisted on speedy Senate action. Don’t ask a lot of questions, he said, just confirm him – quickly.

A famous photo of LBJ giving Abe Fortas “the Johnson treatment”

Conservative southern Democrats and Senate Republicans refused to go along with the hurry up process, particularly after it was disclosed that Fortas had been the beneficiary of a sweetheart deal that paid him a tidy sum to teach at American University, a deal not financed by the college, but by former clients at his old law firm. It was also revealed that the justice had been a regular advisor to Johnson, counseling the president on PR strategy regarding the war in Vietnam, attending cabinet meetings and even drafting a state of the union speech for LBJ. Fortas, with the surety of a Brett Kavanaugh, dissembled about his involvement and ultimately a Senate filibuster killed his appointment as chief justice.

But even as Fortas stayed on the court, the drip, drip of scandal would not stop. And finally when another sweetheart consulting gig involving a shady friend was unearthed Fortas’s time was up. He resigned from the court in disgrace in the spring of 1969. He died in 1982.

So play this out 50 years later with another highly partisan court appointment. Kavanaugh has left not only a vast and still undisclosed paper trail of his activities and views of the George W. Bush White House, but now has had two appearances before the Senate Judiciary Committee where, to be charitable, he has been at best guilty of less than subtle obfuscation.

The president of the United States has outsourced judicial vetting to the most extreme partisans in the community of GOP special interests who want to complete the full politicization of the court. He has, like LBJ in 1965, looked beyond talent and temperament to put a politician on the bench.

No matter what happens with the Kavanaugh nomination – let’s assume he is narrowly confirmed amid continuing controversy about his past and his truthfulness – the scrutiny, just like with Abe Fortas, will not suddenly disappear.

Judge – Justice – Brett Kavanaugh

There is a better than even chance that Democrats will win control of the U.S. House of Representatives in the fall and a feisty New Yorker by the name of Jerrold Nadler will become chairman of the House Judiciary Committee. Last weekend Nadler seemed to be reaching back in time when he said: “We cannot have a justice on the SupremeCourt for the next several decades who will be deciding questions of liberty and life and death and all kinds of things for the entire American people who has been credibly accused of sexual assaults, who has been credibly accused of various other … wrong things, including perjury. This has gotta be thoroughly investigated. I hope the Senate will do so. If he is on the Supreme Court and the Senate hasn’t investigated, then the House will have to.”

Based upon what the Supreme Court should be – independent, free of obvious partisan taint, above politics to the extent that is possible – it’s easy to see that Lyndon Johnson made a historic mistake in 1965 appointing an unabashed partisan to the court. Johnson knew what he was doing. He wanted his guy in there. History shows us how that turned out. Donald Trump also wants his guy on the court, a judge who has wondered out loud if constraints on presidential power are appropriate and, credible questions of past conduct aside, believes he is being put upon only as “revenge on the behalf of the Clintons.” The lesson is clear: controversial, highly partisan nominees are bad for the court and bad for the country.

In his biography of Abe Fortas, historian Bruce Allen Murphy notes that a portrait of Fortas that once hung in a prominent place in the Yale law school has now disappeared from the New Haven campus. Does a similar fate await a new justice? We’re going to find out.

Note: I’m pleased to be writing a new weekly piece for the Friday editorial page of the Lewiston (Idaho) Tribune. I’m looking forward to writing mostly about the state’s politics and history based on 40-plus years of being in and around campaigns, politicos, reporters and issues.

The regular blog will appear here as well from time-to-time.

I’ve long admired the Trib’s editorial page, an institution in Idaho that most of the state’s political junkies consider a “must read.” The page has long been the home of great editors and writers, including Bill Hall, Ladd Hamilton, Jim Fisher and Marty Trillhaase. I’ll hope to do my small bit to uphold that reputation.

Thanks…here is the first piece.

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Idaho’s two Republican U.S. senators will vote soon to confirm Judge Brett Kavanaugh for a seat on the U.S. Supreme Court helping secure a very conservative court for a generation or more. That Mike Crapo and Jim Risch would support a Republican president’s judicial nominee is no surprise. They have eagerly participated in efforts to turn judicial confirmations into just one more hyper-partisan exercise.

Court nominee Brett Kavanaugh

Kavanaugh’s elevation to the Supreme Court likely means the court will become as conservative as any since the 1930s and despite claims that a partisan like Kavanaugh will respect precedent, his appointment could well usher in a raucous period where much long settled law – Roe v. Wade and campaign finance limits, for example – will be up for reconsideration. Where a consensus selection might have reversed the partisan taint now infesting the court a polarizing choice will only make the court more political.

Meanwhile, the notion of “advice and consent” has given way to debate over process and documents. Any pretense that the Senate might actually conduct a bipartisan review of a nominee’s fitness and beliefs now seems as quaint as the concept of judges being above politics.

Both Crapo and Risch expressed support for Kavanagh well in advance of any hearings. Crapo, a member of the Senate Judiciary Committee, the committee that will assess Kavanaugh’s fitness, needed just one meeting to pronounce Donald Trump’s nominee a jurist of “fairness, judgment, and temperament.” Risch was at the White House for the announcement of Kavanaugh’s appointment and immediately said, presumably with a straight face, that the selection reflects “President Trump’s deep commitment to upholding our U.S. Constitution.”

Kavanaugh with Senator Mike Crapo

Other Republican senators, including members of the Judiciary Committee, have actually participated in mock hearings preparing Kavanaugh for his moment under the television lights. Confirmation of this type is a flagrant abandonment of the notion that a co-equal branch of government should actually conduct the type of inquiry required by our Constitution.

While it is true that high stakes judicial nominations have always involved political and partisan considerations – Democrats play the game, as well – Idaho senators in the past often exercised real independence, occasionally even against the wishes of presidents of their own party.

Idaho’s William Borah, never a get-along-go-along Republican, was a senior member of the Judiciary Committee in 1932 when he lobbied Republican President Herbert Hoover to appoint New Yorker Benjamin Cardozo to replace the distinguished jurist Oliver Wendell Holmes. Hoover was reluctant, perhaps because Cardozo, like Holmes, had a reputation for judicial independence. Hoover also hesitated because New York was already represented on the high court. Borah rejected the geographic argument saying Cardozo was a respected national figure as important to Idaho as anywhere else. Borah also wasn’t pushing for a partisan, but for a deeply respected non-political judge. He may also have impressed upon Hoover that he would use all his substantial influence in the Senate to thwart any other nominee. Borah’s independence prevailed and scholars of the court now consider Cardozo one of the greatest justices.

Nevada Senator Pat McCarran and Idaho’s William Borah, both members of the Senate Judiciary Committee in the 1930s.

There is actually a bit of a tradition of Idaho Republicans pushing back against Republican presidents and their court appointments and at times real bipartisanship has prevailed.

Borah, a remarkably independent senator, defied Hoover in 1930 and cast the deciding bipartisan vote against a Supreme Court nominee considered outside the mainstream.

Idaho Republican Senator Herman Welker bucked fellow Republican Dwight Eisenhower in 1955 when he voted against the nomination of John M. Harlan. Welker was locked in a bitter fight with the administration at the time and may have employed his vote to express irritation with Eisenhower, but by today’s standards Welker’s move was a striking example of senatorial independence.

And in 1969 Republican Senator Len Jordan, a pretty conservative guy, joined Democrat Church to oppose Nixon’s nomination of Clement F. Haynesworth. Haynesworth was denied confirmation on a bipartisan basis when evidence surfaced of the judge’s conflicts of interest.

Nixon nominees – Harry Blackmun and Lewis Powell – received overwhelming bi-partisan support, including from Jordan and Church. Gerald Ford nominated only one Supreme Court justice, John Paul Stevens in 1975, and Church and Republican Jim McClure where part of a unanimous Senate. In the early 1990s Republicans Larry Craig and Dirk Kempthorne supported Bill Clinton nominees Ruth Bader Ginsberg and Stephen Breyer, but since then partisanship has reigned supreme and consensus candidates have disappeared.

Merrick Garland, Obama’s nominee in 2016, who didn’t even get a meeting let alone a hearing.

Crapo and Risch opposed Barack Obama’s nominations of Sonia Sotomayor in 2009 and Elena Kagan in 2010 and both supported the unprecedented decision by the GOP controlled Senate in 2016 to not even hold hearings on Barack Obama’s nomination of a well-regarded moderate, Merrick Garland. Neither senator deigned to even meet with Garland. And after eliminating the filibuster on judicial nominees last year Crapo and Risch were part of the Republican majority powering through Trump’s nomination of Neil Gorsuch.

Sadly confirmation hearings have become a kind of ritualized kabuki theater where all participants play a pre-determined role and where everyone knows the outcome before the opening gavel drops. That is not what the Founders envisioned. The current approach – obsequious deference by Republicans to any Republican nominee and an overwhelming emphasis on partisan consideration – debases the idea of “advice and consent” and will only further erode the independence of the Senate and the Court.

“We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster.”

Senator Majority Leader Mitch McConnell

One wonders what some of the great figures in U.S. Senate history would make of the events of the last several days. And what would they make of the hypocrisy?

Senator Robert A. Taft of Ohio.

Think about Robert A. Taft, a Republican conservative of the old school, shaking his head in disbelief at senators in both parties again ignoring their political and moral responsibilities, while genuflecting in praise of Donald Trump’s arguably unconstitutional missile strike on a Syrian airbase. This is the same Senate that refused to authorize military action in 2013 after Barack Obama insisted that Congress debate and vote on launching a strike against yet another Middle Eastern nation.

Oh, the Hypocrisy…

To read the justifications for stiffing the president in 2013 and to compare those words to the cheerleading for Trump’s action now is to see (again) in the starkest terms the intellectual bankruptcy – not to mention the hypocrisy – of the modern Republican Party. And now they have pulled the United States Senate down to a new low.

Republican after Republican has rushed in front of the cameras to praise a president who could scarcely find Syria on a map last year and who most serious people know will be unable to fashion a coherent strategy in the wake of his hair trigger launch order. But, no matter. Donald Trump may be a fool, but he’s a Republican fool and we support our president – at least while he remains popular with the Tea Party base.

The ugly little truth is that Congress has systematically frittered away, at least since the early 1950s, its solemn responsibility to provide checks on a president in matters of foreign policy, especially a president’s power to launch a war. This has happened as

White House released photo of Syrian airbase hit by U.S. missiles

Republicans regularly pledge fidelity to a Constitution they simply ignore when it proves politically convenient to do so. Never mind that only Congress can declare war. Forget the hypocrisy of dismissing his predecessor as “feckless,” while offering a blank check to a guy who had to fire his National Security Advisor less than a month into office, who has dismissed the intelligence committee as “Nazi-like, and who can’t get organized enough to appoint key deputies all across the national security apparatus.

Never has the abdication of Congressional responsibility in the area of foreign affairs seemed more serious than now. Never have checks on a dangerous president been more in the national interest.

In a nutshell senators, and I don’t confine this critique exclusively to Republicans, want to praise a one-off missile strike as amounting to tough action, but still provide themselves, for purely political reasons, plausible deniability that they had anything to do with the decision. Make no mistake we have opened a new war in Syria and not a war directed at the stated enemy – ISIS. The target of the missile strike was the murderous regime of Bashar Assad. We didn’t destroy ISIS aircraft with 59 missiles. It was the Syrian air force we were after and perhaps for very sound reasons. If so, Congress must get involved.

If, and almost certainly when, things take a turn for the worse with increasing American involvement in Syria the sunshine patriots in Congress won’t have to justify a difficult vote. That is their real aim. Their hands will be clean if not their conscience. It is a shameless posture and it is not what the Constitution demands, but it works – at least for the moment – to tighten the grip on power of the Senate majority leader and the man in the White House that he further enables.

Mitch McConnell is the perfect leader for the modern Senate. In the same week he is able to protect his caucus from having to make a tough vote on Syria and he manages the Senate rules to placate the 40 percent of Americans who want the Supreme Court to revisit everything from the New Deal to Roe v. Wade.

The Senate Changes…Forever

Imagine the reaction of Mike Mansfield of Montana, perhaps the greatest majority leader in Senate history, to the Senate changing its rules merely to put a very, very conservative judge on the Supreme Court. And the majority set about changing the rules after refusing for nearly a year to even consider the nomination of a moderate jurist, a judge appointed by a president of the opposing party.

The Senate as a political institution, while never close to perfect, has frequently in our history transcended the petty partisanship of the moment in order to provide genuine leadership that reflected the broad public interest. Not any more.

One day historians will look back on this period and find fault, I suspect, with small-minded leadership in both political parties, but they will reserve their greatest contempt for the Senator from Kentucky.

The Atlantic’s James Fallows, hardly a blind partisan, but a long-term and nuanced observer of American politics, recently did his own Twitter summation of what I’ll call the Reign of the Partisan. Fallows said we would look back on the current time and mark the “decline in national governance” to Mitch McConnell’s actions beginning in 2006.

While in the minority then McConnell “routinized the filibuster in [an] unprecedented way.” It is a modern myth that the filibuster, the need for a super majority of 60 senators to cut off debate and bring an issue to a vote, has always and routinely been invoked in the Senate. It hasn’t. McConnell made the filibuster routine.

Majority Leader Mitch McConnell

Now in one of the rawest displays of partisan political power in the history of the Senate McConnell engineered a change of the filibuster rules in order to push through Donald Trump’s Supreme Court pick. And, of course, the action was taken in the wake of McConnell unilaterally refusing to consider any Court nominee from Obama.

I know, I know, Democrats earlier changed filibuster rules for other judicial positions and a guy named Chuck Schumer has used the filibuster on judicial nominees for purely partisan reasons. As lamentable as that action was when Democrats did it McConnell’s action now is of an entirely different degree of seriousness and partisanship. Invoking the so called “nuclear option” will change the Senate permanently and for the worse – and yes it can get worse – will deepen tribal partisanship and has finally settled the question of whether the Supreme Court has become just another partisan branch of the government. It has.

U.S. Senate chamber

Yet changing the Senate rules is hardly all that McConnell hath wrought. After Obama’s election in 2008 McConnell said his own “measure of success,” as Jim Fallows says, “would be denying [Obama] a second term.” From day one he was all about obstruction by any means in order to thwart the Obama presidency. The idea of compromise, any notion of working together on national priorities was cast to the winds in favor of raw partisanship and a GOP majority.

[McConnell, we now know, was also the main hold out in Congress that prevented an earlier and stronger pre-election response to Russian interference in the presidential election. You have to ask why he was reluctant to send a strong signal about all that, but I think you know the answer.]

I listened closely to the arguments advanced by both sides in the run up to the change in Senate rules that paved the way for Judge Neil Gorsuch to slip comfortably into Antonin Scalia’s old seat on the high court. I came away stunned by the shallowness of the logic on both sides. What neither side could say, but what is demonstrably true is that there is simply no middle ground left in American – or Senate – politics. Partisanship rules on absolutely everything. If our guy does it that’s fine. If the other guy does it, well that’s an outrage.

The filibuster, or more correctly the idea of “unlimited debate,” exists for two basic reasons: to protect the rights of the minority and to force compromise and political accommodation on contentious issues. Was the practice abused before McConnell weaponized it? Of course it was, but until relatively recently the idea of seeking some degree of political consensus on something as serious as going to war or giving lifetime tenure to a Supreme Court judge wasn’t as unthinkable as it has now become. If you are looking for someone to blame for this disgusting toxicity you can start with Mitch McConnell.

As the Washington Post’s Dana Milbank put it: “By rights, McConnell’s tombstone should say that he presided over the end of the Senate. And I’d add a second line: ‘He broke America.’ No man has done more in recent years to undermine the functioning of U.S. government. His has been the epitome of unprincipled leadership, the triumph of tactics in service of short-term power.”

Trump and McConnell: The Clueless and the Cynical

The cynicism of McConnell and his commitment to raw power is actually most clearly on display in his response to Donald Trump as president. McConnell is not stupid and he is certainly smarter than the current occupant of the White House. McConnell knows Trump is an arrogant fool, not a conservative and clueless on anything like real policy. But Trump is also, to use the old Communist putdown, “a useful idiot,” a means to an end for the Senate leader.

McConnell enables and encourages a man he knows to be unfit because Trump means power, particularly to remake the Court. And, of course, McConnell’s wife is in the Cabinet in a useful position at the Transportation Department where, should there be a big infrastructure bill in the future, the money will flow. McConnell is deeply cynical, but he knows an opportunity when he sees it. He’s going to make the most the Trump presidency for as long as it lasts.

Ironically, McConnell’s final wrecking of the Senate as a functioning institution fits perfectly with the near complete destruction of the old conservative Republican Party that Trump has engineered. This point was well made by Princeton historian Sean Wilentz in a recent piece in Rolling Stone. That article dissected Trump’s obvious and extreme case of narcissistic personality disorder, but also touched on the political crisis that McConnell and Trump have created and now preside over.

“It’s a sign, actually, of how severely we need functioning parties,” Wilentz said. “Because when they work, they are in fact a check on the emergence of this kind of character [Trump]. You can’t get where Trump is now in a functioning party system. It took this particular political crisis, which was a political crisis, to produce a president who has this trait. Normally, we can weed them out.”

Mitch McConnell has consistently played to the worst instincts of the Republican base. He’s never missed a chance to deepen the partisan divide. His strategy is all about the next election, never about the next generation. McConnell – and Trump for that matter – are the perfect characters to stand at center stage while national governance disappears faster than factory jobs in the Rust Belt.

Bob Taft and Mike Mansfield would not recognize the place we inhabit or the Senate Mitch McConnell has made. In fact one suspects they would be appalled. But no matter. McConnell is winning even if the country isn’t.

“I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.”

Senate Majority Leader Mitch McConnell

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Barack Obama has confounded his political foes by nominating a moderate, consensus-focused, precedent-deferential federal judge to the United States Supreme Court as a replacement for the late Justice Antonin Scalia.

Judge Garland and President Obama

Federal Circuit Court of Appeals Judge Merrick Garland is, in short, just the kind of justice we should want on the Supreme Court. With the Court increasingly becoming just another venue to practice a judicial version of our toxic partisan politics, the Garland nomination should be an antidote that begins to correct the broad impression that judges are just politicians in robes. But Mitch McConnell and Company have ruled that out on the completely specious grounds that Obama’s term ended last year and any nomination to the Court is just politics, nothing more or less.

Not that most politicians would waste a split second thinking about what rank partisanship does to public confidence in the judiciary, it is worth nothing that confidence in the Court has been steadily eroding for thirty years according to data from the Pew Center. Those declines correlate nicely – or depressingly – with the partisan battles over the Court that stretch at least back to Robert Bork.

Even Chief Justice John Roberts thinks the confirmation “process is not functioning very well.” Call that a judicial understatement.

All the players have the judicial blood of petty partisanship on their hands. Politicizing the Court is one thing Republicans and Democrats agree upon, even as McConnell and his not-so-merry band lead us into a wholly new judicial confirmation cul-de-sac. Both sides have mined the depths of confirmation history to try and find any weak precedent on which to hang the current partisan fight, but the Republican logic – that the “people” need to be heard and no nominee can be considered until after the election – is particularly devoid of intellectual honesty. In his newfound role as a Republican truth-teller, South Carolina Senator Lindsey Graham admitted as much.

“We’re setting a precedent here today, the Republicans are, that in the last year — at least of a lame-duck, eight-year term, I would say it’s going to be a four-year term — that you’re not going to fill a vacancy on the Supreme Court, based on what we’re doing here today,” Graham said. “That’s going to be the new rule.”

Even if the late Justice Scalia often ignored precedent that didn’t correspond with his personal views of the Constitution, don’t count on the U.S. Senate to ignore in the future the path they have now set for themselves in 2016. The Court becomes one more partisan pawn. It wasn’t always so, or at least it wasn’t always as bad as it is now.

Searching for Precedent…

Republicans have correctly pointed out that it was one hundred years ago when a president of one party had a justice confirmed by a Senate controlled by the other party. The president was Democrat Woodrow Wilson, who actually made two appointments in 1916 – an election year – and both were confirmed. One of those appointments, Louis Brandeis, was controversial. Brandeis was not only the first Jewish member of the Court, but a renowned progressive who had made his career opposing monopoly and the abuses of unregulated capitalism. Still, Brandeis was confirmed by a Republican controlled Senate and went on to become, by most every measure, one of the greatest justices in the history of the Court.

Charles Evans Hughes

But consider for a moment the other vacancy Wilson filled in 1916, the seat vacated by the resignation of Associate Justice Charles Evans Hughes. Hughes, the former Republican governor of New York, resigned his Supreme Court seat in order to run for president against Wilson, arguably one of the most partisan acts by any member of the Court in our history.

Hughes narrowly lost that election and then slipped easily back into Republican politics. He served as Secretary of State under Presidents Harding and Coolidge, represented Wall Street and big business interests as an attorney – Hughes argued more than 50 cases before the Supreme Court – and might have been a presidential candidate again in 1928 had he not declined citing his age.

As more proof that the current Senate politics of rejection by inaction is truly unprecedented, consider Hughes’ return to the Supreme Court in 1930, as the nominee to become chief justice, appointed by the beleaguered President Herbert Hoover. With the catastrophic impacts of the Great Depression settling over the nation, Hoover appeared more and more like a one-term president, even two years before another election and his appointment of a partisan Republican, not to mention a big-time corporate lawyer like Hughes, was too much for a bipartisan group of Senate progressives. They determined to oppose Hughes, perhaps the most broadly qualified person ever appointed to the Court.

Still, there was no talk or apparently even any thought to not bringing Hughes’ nomination to a vote and certainly no hint that senators who opposed his appointment would filibuster. Instead the Senate did what the Constitution calls for – it offers advice and consent (or if it doesn’t like the nominee for whatever reason it withholds its consent).

Idaho Republican William E. Borah led the Senate opposition to Hughes. While admitting that Hughes was “a man of high standing” and a person “of wide reputation and acknowledge ability,” Borah said he was also an unreconstructed big business Republican whose views should not be made “a permanent part of our legal and economic system.”

Hughes: An Example of the Sweet Irony of Politics

Hughes was confirmed and served with great distinction until 1941. When Franklin Roosevelt attempted to “pack” the Supreme Court in 1937, Hughes quietly and effectively made common cause with Borah and others who had once objected to his confirmation. Hughes’ role in those pivotal events, as well as his often progressive record on the Court is a prime example of the sweet irony or unintended consequences that can occasionally grace the grubby business of politics, and judicial appointments.

Benjamin Cardozo

Herbert Hoover made another Court appointment in 1932, a decision made much closer to the election of 1932, which he subsequently lost to Roosevelt. That appointment, suggested by Borah – talk about advice as well as consent – was of Benjamin Cardozo, a brilliant legal mind who Hoover initially thought was too liberal to be considered. Borah convinced the president of Cardozo’s merits and he also turned out to be a great justice.

Politics can never – and perhaps should never – be completely removed from any president’s decision about any Supreme Court appointment, but for the process to work as the Founders envisioned everyone has to play their role, and play it responsibly. Obama has made a superlative choice in an awful time of political upheaval – a judge of proven ability, upmost integrity, not a political choice, but rather a nominee who would normally be seen as a moderate, consensus-demanding choice. In other words, just the kind of person we need on the Court, The Senate should rush to confirm him.

The political commentator Ezra Klein puts it more starkly. By edging ever closer to the nomination of Donald Trump and playing blatant partisan politics with the Supreme Court, the GOP has adopted a position “that they will refuse to confirm any nominee, no matter how qualified or appealing, until the next president is inaugurated. In practice, what this means is they are hoping to hold the Supreme Court vacancy so it can be filled by … President Donald Trump.”

Klein quotes the prescient observations of Congressional scholars Norm Ornstein and Thomas Mann. “The GOP has become an insurgent outlier in American politics,” as they wrote in an important 2012 book. “It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.

“When one party moves this far from the mainstream, it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

Those who follow Mitch McConnell blindly into this dark partisan political thicket are playing with fire and one suspects many of them know that. They will live to rue the day they refused even to consider a demonstrably qualified and moderate appointment. They may think it can’t get worse. They would be wrong.

The November election will determine the shape of the Supreme Court for a generation or more. Mitch McConnell is betting the country on Donald Trump. Would you bet even a Starbucks latte that Trump has any clue about what a Supreme Court appointee ought to look like?

Director Steven Spielberg’s latest offering – Bridge of Spies – works on several levels as his best films tend to. In fact, it may be one of his very best films.

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

The movie is a classic big screen thriller with adequate action and suspense. It’s a finely tuned period piece (mid-century modern) complete with old cars, vintage billboards, and “duck and cover” filmstrips.

Bridge of Spies is also an actor’s movie with superb performances by Tom Hanks and Mark Rylance, perhaps the world’s most acclaimed stage actor, and a talent that will be new to many movie goers.

And since this is Spielberg, the film is also an American history lesson.

When the Cold War Was Really Cold…

Hanks, who seems to hit his stride when working with Spielberg, plays New York attorney, James B. Donovan, who improbably becomes the key player in arranging a celebrated Cold War prisoner swap between the United States and the Soviet Union. The action is set at the end of the Eisenhower Administration and continues on into the Kennedy years – days of the Berlin Wall, the Bay of Pigs, the Cuban Missile Crisis, and spy versus spy.

The key figures in the prisoner swap – again all true – were the young American Air Force lieutenant Francis Gary Powers, who is appropriated to fly spy planes for the CIA, and the notorious Soviet spy, Colonel Rudolf Abel.

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Powers became a Soviet prisoner in May 1960 when his U-2 spy plane was shot down in the Ural Mountain region of the Soviet Union during a photography run. Powers survived the crash – great scene in the movie – and was captured by the KGB.

The Eisenhower Administration originally tried to pass off the incident as a wayward weather aircraft, but the Soviets produced wreckage of the super-secret U-2 and Soviet Premier Nikita Khrushchev reaped an international propaganda windfall. A summit meeting in Berlin was cancelled and efforts to improve U.S.-Soviet relations were temporarily derailed. It was a major international incident that also had the human dimension of a young American with a head full of secrets about U.S. spy activities sitting in a Russian jail.

Earlier, in 1957, after a long string of events that read, appropriately enough, like something out of John Le Carre, the FBI and Immigration and Naturalization Service identified Colonel Abel as a Soviet spy who had been operating in the United States for some time. Abel was arrested in Brooklyn, tried, and convicted of espionage. The New York lawyer, Donovan, was appointed by the federal court in New York to defend him.

The film mangles some of the timeline and a few things are invented out of whole cloth – this is Hollywood after all – but the real power of the story and its great relevance today is in the courtroom scenes where Abel is first convicted and then loses an appeal before the U.S. Supreme Court.

After seeing and completely enjoying the film, I got to wondering what really happened in the U.S. justice system during the height of the Cold War when the government tried a man thought to be a Soviet spy.

Does a Soviet Spy Deserve Due Process…

The film understandably compresses a good deal of the story, which played out over several years, but makes some powerful and important points in the telling.

A basic question is raised early on when attorney Donovan (played by Hanks) has to confront the dilemma of an upstanding attorney, a pillar of the New York Bar, signing on to do his best to defend a Russian spy. What are the implications for his career, his law firm, his family? I immediately thought about the private attorneys who continue to represent Guantanamo detained terror suspects.

The real Rudolf Abel

The film makes us confront whether it is merely enough to give Abel a defense that goes through the motions of due process or whether he deserves a no-holds-barred defense, including appeals on grounds that his hotel room and apartment were improperly searched.

At one point a CIA operative shadows Donovan in order to question him about what his client has been saying. Donovan, in one of the film’s best moments, tells the CIA fellow that he won’t – indeed can’t – talk about what his client is telling him since it is protected by attorney-client privilege. There are rules, Donovan says, most importantly the Constitution that make our system different than the system that is detaining Gary Powers.

Abel’s case, both in the film and real life, eventually reaches the Supreme Court over the question of the lack of a proper warrant that specifically authorizes a search the defendant’s rooms. Give Spielberg credit, he even gets the Supreme Court courtroom correct. Abel’s case was argued, actually twice, in 1959 and the courtroom has since been remodeled.

The case turned on a complex question about whether a warrant for an “administrative arrest” – Abel was actually arrested by the immigration service after being detained and questioned by the FBI – allowed the subsequent FBI search of his rooms. The celebrated Justice Felix Frankfurter wrote the rather technical 5-4-majority opinion upholding the legality of the search and Abel’s conviction stood.

“Cases of notorious criminals—like cases of small, miserable ones—are apt to make bad law,” Douglas wrote in his dissent, which was joined by Justice Hugo Black.

“When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. That practice, in certain periods of our history and in certain courts, has lowered our standards of law administration. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement. The present decision is an excellent example.”

Douglas was saying sure this Abel is a Soviet spy – a notorious criminal – but the rules apply to him just as they apply to “small, miserable” law breakers.

“If the F.B.I. agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized,’” Douglas wrote. “How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!”

Brennan was just as pointed: “This is a notorious case, with a notorious defendant. Yet we must take care to enforce the Constitution without regard to the nature of the crime or the nature of the criminal. The Fourth Amendment protects ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ This right is a basic one of all the people, without exception…”

Real American Exceptionalism…

The court case and the film also make the fundamental point that Abel, not a U.S. citizen, still enjoyed the full protections of the country’s justice system, a point worth pondering as the terror suspects sit year after year in Cuba.

President Kennedy with James B. Donovan who also negotiated the return of Bay of Pigs captives

The negotiations over the swap are some of the best moments of the film and, intentionally or not, Spielberg shows that the New York insurance lawyer who became an Cold War negotiator turned out to be a lot better high stakes deal maker than his CIA minders.

The film is already getting some Oscar buzz – it is certainly worthy – if only for its deft storytelling and the great performances. Mark Rylance’s portrayal of Rudolf Abel is nothing short of brilliant. And the script by the Cohen Brothers is first rate. A typical Cohen touch is the reoccurrence of Abel’s response when his lawyer asks him if he’s worried or afraid: “Would it help?” That has become my new mantra.

As good as the movie is as entertainment here’s hoping a few enterprising high school (or college) teachers use the film in class to make the more important points about our justice system and our history.

The hero in the film is, of course, attorney Donovan, a man mostly lost to history whose role in Abel’s trial and in the spy swap may now finally enjoy some long overdue recognition. Donovan, who died in 1970, spent years working on the Russian spy’s defense and appeals and donated half his $10,000 fee to Fordham University and split the rest between Harvard and Columbia. Setting aside the Abel case and the spy swap, the rest of Donovan’s career – naval officer, Nuremberg prosecutor, New York board of education member, U.S. Senate candidate – was truly incredible. A great American story.

Even though he lost at every level Donovan said after the Supreme Court ruling, “The very fact that Abel has been receiving due process of law in the United States is far more significant, both here and behind the Iron Curtain, than the particular outcome of the case.”

One of the challenges in assessing the presidential candidacy of Donald Trump is that you run out of words that begin to describe his idiocy and cluelessness. I haven’t used despicable for a while, so let’s use that to characterize Trump’s reaction in the wake of the horrific – and most recent – mass shooting last week in Roseburg, Oregon.

Trump: More Myths About Guns

And, of course, the GOP front runner had to make the unthinkable tragedy of students and their teacher murdered in a writing class all about him. “I have a license to carry in New York. Can you believe that? Somebody attacks me, they’re gonna be shocked,” Trump blustered in front of a cheering crowd at a campaign rally in Tennessee.

The Republican clown then completed the trifecta of gun mythology, which includes the old canard that even more guns are the answer to mass shootings and that we should all be armed to make the country safer, when he dismissed the epidemic of mass gun murder in the United States as (and he should know) a mental health issue.

It’s also not about the myth of mental illness, although that certainly plays a part. Dr. Paul Applebaum, a Columbia University psychiatrist who specializes in attacks like the recent one in Oregon, told New York Magazine last week that it is a fool’s errand to attempt to deal with mass murder by attempting to predict who is capable of mass murder.

“When I heard the news of the Oregon shootings, I thought, I’m done talking to reporters about the causes of violence.” Applebaum told the magazine. Rather, he said, he had developed a one-size-fits-all statement for the media that concluded, “If you tell me that there’s nothing we can do about guns, I’d say then we’re done. We’ve conceded that we are willing to tolerate periodic slaughters of the innocent. There’s nothing more to say.’”

Over the next couple of days the horror that unfolded last Thursday at Umpqua Community College will quickly fade away as it always does after the most recent gun outrage in America, while the short national attention span will move on to something else. President Obama is certainly correct when he says mass gun murder has become so routine in America that we have trouble maintaining for more than about two news cycles the outrage that might move us to action. We aren’t just lacking in urgency about gun mayhem we just don’t care.

Police search students at Umpqua Community College in Roseburg, Oregon last week

The families in Roseburg will be left to attempt to cope with their grief and loss. But we should all grapple with the haunting words in one family’s statement that the loss of their 18-year old child has left their lives “shattered beyond repair.”

Meanwhile, the political class carries on with nary a skipped beat, repeating the old, tired and lame myths about guns. The Oregon victims deserve better – much better – than the perpetuation of myth making about guns from Trump and all the other apologists for mass murder who refuse to face facts about the society’s perverse embrace of the culture of the gun.

Debunking the self defense myth (using real facts), David Atkins wrote in the Washington Monthly that the right wing gun lobby and its slavish adherents have “gone so far off the rails that reality is no longer a relevant boundary on discussion. As with supply-side economics, the benefits of gun culture are taken not on evidence but on almost cultic faith by the right wing and its adherents.”

This mind set, apparently, prompts a state legislator in Idaho to post on his Facebook page that he is “very disappointed in President Obama. Again he is using the tragic shooting in Oregon to advance his unconstitutional gun control agenda.” What a crock, but also what a widely believed crock. When it comes to guns we know what we believe even when it’s not true. Discussions – or arguments – about guns exist like so much of the rest of American political discourse – in a fact free environment. Myths about guns morph into “facts” about guns.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

– Second Amendment to the U.S. Constitution

The entirety of the mythology begins, of course, with the Second Amendment and the decades that the National Rifle Association has devoted to myth making about the twenty-six words of the amendment.

“For more than 200 years following the adoption of that amendment,” Stevens has written, “federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated Militia.’”

…A Well Regulated Militia…

Stevens says during the tenure of the conservative Republican Chief Justice Warren Berger, from 1969 to 1986, “no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.”

In his retirement Chief Justice Burger bluntly said in an interview that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

Only fairly recently, in fact in the last decade as Stevens points out, has the Second Amendment been broadly reinterpreted by the Court – the Heller decision in 2008 and the McDonald case in 2010, both decided by 5-to-4 votes – to sharply expand its meaning. Of course, powerful political forces, including most importantly conservative politicians and the NRA, helped to propel these changes made by the most conservative Court since the 1930’s. The gun myths grew in direct proportion to the political agenda of the mostly rightwing politicians who benefitted most significantly from the NRA’s pressure and cash.

Nonetheless, “It is important to note,” Stevens writes, “that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures” – expanded background checks and bans on assault weapons for instance – that were widely suggested in the wake of the Newtown tragedy that claimed the lives of 20 children in 2012.

Justice Stevens would go farther, as would I, in returning the Second Amendment to its original intent by inserting just five additional words. A revised amendment would read: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militiashall not be infringed.”

But such a change seems unthinkable when federal lawmakers won’t risk NRA ire by even discussing the kinds of change that the existing Second Amendment clearly permits.

Rather than advancing an “unconstitutional agenda” as gun mythology would have you believe, Obama has suggested – he did again last week and will no doubt do again and again – that “responsible” gun owners should finally support common sense efforts that might begin to roll back the rate of slaughter. You have to wonder if there actually are “responsible” gun owners out there who are as shocked as some of us are about mass murder at a community college, or at a church in Charleston, or at a theatre, a shopping center, at Army and Navy bases, or in a Connecticut elementary school.

Has the NRA so poisoned the political well of reality that no red state Republican can dare say “enough is enough” and something must change? Is there no group of “responsible” gun owners willing to call the bluff of the makers of the gun myths? Does every NRA member buy the group’s more guns, no regulation logic, while blithely sending off their dues to enrich a collection of political hacks in Washington, D.C. whose real agenda is to – wait for it – maintain their influence and, of course, sell more guns?

So, while Roseburg mourns, the gun world turns away and Trump and others get away again with repeating the well-worn myths about guns. What we can be sure is not a myth is that we will be here again soon enough repeating the call for prayers for the victims and the first responders and we will, for a few televised moment at least, be stunned, while we consider the ever mounting death toll.

And so it goes. The cycle repeats. Nothing changes. A society’s inability to deal with its most obvious affliction hides in plan sight. We also quietly hope that the odds are in our favor and unlike the grief torn families in Oregon we’ll not be the next ones shattered beyond repair.

The old political axiom applies and, yes I know I’ve used it before, but in this case it is so very appropriate.

You can go from hero to zero just like that…and Scott Walker, the one-time next president of the United States, just did.

Scott succumbs

Has there ever been a bigger political dive off the high board and into the shallow end of the pool than that of the seriously under prepared governor of Wisconsin? We all remember presidents like Rudy Giuliani, Rick Perry, Dick Gephardt and Joe Lieberman, but Walker seems in a different class.

Walker has re-defined political flame out. If the Packers folded like this Wisconsin would demand a review of the videotape. In Walker’s case the cheeseheads just have to have him back in Madison full-time, which seems penalty enough.

The guy is an ultra-conservative in notoriously independent Wisconsin. He survived epic statewide battles over union busting, teacher bashing and even a recall. Walker kicked at one of the great state university systems in America by diminishing the “Wisconsin Idea” that education is about more than just landing a job out of college, but also has something to do with being an engaged and informed citizen and improving lives. The not-ready-for-prime-time governor actually and secretly tried to re-write the mission statement of the university system to eliminate the lofty, aspirational language that speaks to his state’s aspirations and when called on the move tried to pass it off as “a drafting error.”

Sleazy suddenly became slimy and the errors were all his.

Still Walker confidentially rode a Harley and acted like he knew that Green Bay has a football team. He seemed to be every hard right Republican’s dream – a Midwestern swing state governor who might have appeal to Catholics, middle class white voters and the Tea Party. But a funny thing happened on the way to the White House. The lightweight drowned in a substance-free pool of his own making. The best day of his campaign was his announcement; then it was all down hill.

The good news: More time for road trips

Walker flip-flopped on same sex marriage, the 14th Amendment and abortion. He pandered on immigration and suggested that a wall between the United States and Canada might be a fine idea. He didn’t know ISIS from Appleton. Walker kissed up to Donald Trump and when that didn’t work he left the race saying that while sitting in church he was “called to lead by helping to clear the field so that a positive conservative message can rise to the top of the field.”

Just for the record that wasn’t God calling, but a message a good deal more secular. Walker went from leading the pack to zilch in the polls. Hello…can you hear me now?

Walker was almost immediately discovered to be an empty suit, an ultra-programmed one-time Milwaukee County Executive who somehow became the chief executive of one of the nation’s great states. It was as though Walker had been miraculously cast as a Broadway leading man when he hadn’t proven that he could perform in summer stock or even community theater.

If Walker were from Texas rather than Wisconsin we’d be saying he was “all hat and no cattle.” More likely he was all curd and no cheese. His carefully scripted talking points sounded impressive on a small stage and seemed without substance when he tried to take his simplistic show national. Walker rode that Harley right onto an early exit ramp. His presidential campaign lasted two months. Not a record, but still below average.

America is a great country. Anyone can grow up to be president. Lincoln from a log cabin with a dirt floor. Wilson from a PhD and Princeton. Reagan and Nixon and Carter and Obama. Imperfect humans all, but not a lightweight among them. Walker, the labor killer of Madison, turned out to be lighter than air as a presidential hopeful, a candidate who couldn’t direct his own bloated campaign, let alone the country. In the slightly more than two months he spent padding around Iowa and New Hampshire, as the Washington Post reported, Walker’s “presidential bid had amassed a debt of roughly $700,000.” Quite the storyline for a college dropout who slashed the budget of a world-class higher education system and went after pensions in the interest of managing public spending.

Scott Walker is proof of another old adage. In politics you can fool some of the people all the time. Before it tanked Walker’s campaign raked in more than $5 million from the foolishly profligate Ricketts family, the owners of baseball’s Chicago Cubs. It was reported that Joe Ricketts, the family patriarch and TD Ameritrade founder, “settled on Walker after private meetings over the past year at his New York apartment and his ranch in Wyoming’s Jackson Hole valley. They bonded over their Midwestern backgrounds and conservative views on spending.”

The spending, it turned out, was all Walker’s. Walker was so sure of his political future, so certain of himself that he spent his donor’s money like there was no tomorrow. Turns out there was no tomorrow. Joe Ricketts might have better spent the $5 million he gave to Walker on a left handed pitcher who might have helped his historically pathetic baseball team in the post season. But then again that might be a case of good money after bad.

Walker unaware that he is posing with a fake check from the Koch brothers

Walker also attracted the cash and attention of the really big money Koch brothers proving that being really rich isn’t always proof of being really smart, particularly when it comes to politics. “When the primaries are over and Scott Walker gets the nomination,” David Koch told a fat cat crowd in Manhattan last April, the billionaire brothers would really open their checkbooks. Makes you want to play cards – or Monopoly – with those guys.

Scott Walker now fades away to an asterisk in the American political story, a less than mediocre middle size state governor who parlayed a slash and burn style and the hot rhetoric of division into a belief that ideology and self-assurance can cover for a lack of real accomplishment and real substance.

We’ve all seen the type that Walker represents – the brash city councilman or too sure of himself state legislator who looks in the mirror while shaving and sees a man of destiny. The real image starring back, however, is just a reflection of old-fashioned ambition and the hubris that comes with believing your own press releases.

National pundits are suggesting that Walker’s tumble is all the work of another candidate who always oversells his accomplishments, but Walker’s crash is more about Walker than it is about Trump. Trump is a flashy neon sign, more sizzle than seriousness. Walker tried to present himself as the serious candidate of the angry right and set out to out flank The Donald, but he ultimately – and quickly – lacked the depth, validity and appeal to pull it off.

In the end many GOP voters seem to favor a flamboyant private sector non-entity rather than just merely an elected one.

It is hard to find a parallel in American political history when one news organization – perhaps I should put that word “news” in quotes – has played such an outsized role in determining who gets covered and ultimately who gets nominated by one of the major political parties.

Roger Ailes, the Big Boss at Fox News

For good or bad much of the Republican presidential primary process is now largely in the hands of Fox News boss Roger Ailes, a profoundly partisan fellow who displays a deft touch for marketing the outlandish and who has built a brand and banked a bundle by zealously appealing to the shrinking band of very conservative older white voters who will decide who wins the Republican nomination in 2016. Ailes will ultimately determine which of the GOP candidates crowd on to the debate stage in Ohio on Thursday just as he will decree who watches from the wings.

There have been occasions in American political history when one media big foot or another have wielded disproportionate sway over a nomination or a candidate, but there has never been anything like Fox News.

William Loeb made his Manchester, N.H. paper both feared and hated

Crusty old William Loeb ran his hard right Manchester Union Leader newspaper in New Hampshire like the tyrant he was and often shaped the outcome of his states first in the nation primary. Loeb used his front-page editorials to call Democrats ”left-wing kooks,” John Kennedy ”the No. 1 liar in the United States,” Nelson A. Rockefeller a ”wife-swapper” and Dwight Eisenhower a ”stinking hypocrite.” Loeb wasn’t above publicizing a phony letter designed to diminish Maine Senator Edmund Muskie’s 1972 candidacy. The letter was later shown to be part of a “dirty trick” effort promulgated by Richard Nixon’s campaign, which not incidentally employed Roger Ailes to help Nixon win in 1968. Loeb, a bully with barrels of ink, even attacked Muskie’s wife. It was one of the great smears in American political history and it worked.

In earlier decades press barons like McCormick and Hearst controlled their home state delegations and fancied themselves kingmakers, but none had the national reach of Fox and the personal sway of Roger Ailes.

Fox and Republicans Captives of Each Other…

Fox has become the Republican brand and vice versa, which seems to delight the most passionate and most conservative voters, but also means the network and those favored with its air time are mostly preaching to the Tea Party choir – 30 or so percent of the American electorate that thinks the last great president was Barry Goldwater. As if to underscore the tangled lines among Republicans and Fox News, Governor John Kasich over the weekend “walked back,” as they say, which is to disavow the pithy tweet from his strategist that begins this piece. John Weaver’s comment was funny, aimed it would seem at both Donald Trump and Fox and had the added benefit of being true. You won’t be surprised to know that Kasich did his walking back during an interview on Fox.

Fox fans will instantly dismiss the informed critique as the work of eastern elites – the Shorenstein Center is at Harvard, after all – but it’s difficult to dismiss comments like this from academic Geoffrey Kabaservice: “These people,” Kabaservice says in speaking of right wing media in all its forms, “practically speaking, are preventing the Republican Party from governing, which means they’re really preventing it from becoming a presidential party as well.

[Kabaservice is the author of Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party, from Eisenhower to the Tea Party. He is a Republican.]

The Shorenstein report was authored by one of the better “old media” political reporters Jackie Calmes, a New York Times national correspondent, who did a stint as a fellow at the Center.

No Incentive to Bother With Reality…

Here’s one quick take from her report where she quotes a Republican staffer on Capitol Hill, “who has worked in the top ranks of congressional and presidential politics, but, like some others, asked to remain unidentified lest he provoke the far-right messengers against his current boss: ‘It’s so easy these days to go out there and become an Internet celebrity by saying some things, and who cares if it’s true or makes any sense. It’s a new frontier: How far to the right can you get? And there’s no incentive to ever really bother with reality.’ Or to compromise: ‘There’s no money, ratings or clicks in everyone going along to get along.’”

In other words, the Fox approach, exemplified by the self righteous bomb-thrower Sean Hannity, as well as dozens of others on right wing talk radio and in the blogosphere, is to crank up the outrage meter, pour ideological gasoline on any smoldering fire – immigration, Benghazi, Obamacare, shutdown the government, Iranian nuclear deals, etc. – and stand back and watch the flames scorch anyone left of Ted Cruz who might offer a sane, moderate, middle ground approach. The influence of right wing media on hard right and more moderate Republicans has served to substitute indignation and anger for anything like a real political agenda. Real policy that involves anything other than saying “NO” in a very loud voice is as foreign to Fox and friends as are real facts.

Calmes asked one Capitol Hill Republican if he could offer examples of legislative outcomes affected by conservative media. His response: “Sure. All of ‘em…the loudest voices drown out the sensible ones and there’s no real space to have serious discussions.”

Export-Import Bank: the Latest Litmus Test…

Take, for example, the current controversy involving re-authorization of the Export-Import Bank, a little known government agency that provides loan guarantees for foreign purchases of American goods. Tea Party-types – read Fox News viewers – see the program as a prime example of “crony capitalism” even though as New York Times columnist Joe Nocera points out the bank “generated enough in fees and interest to turn over $675 million to the Treasury. Why would anyone in their right mind want to put such a useful agency out of business?”

Why indeed, but you need look no farther than the right wing media to see the issue is perfect for the politics of outrage that are the staples of Fox, Rush Limbaugh and a hundred others who have made it difficult – if not impossible – for a Republican Congress to actually make sensible decisions, embrace the occasional compromise and, well, govern.

“This is a battle,” Ted Cruz proclaims, as he attempts to elevate his presidential candidacy with a constant stream of attention getting hyperbole. “Do you stand for the rich and powerful who corrupt Washington,” the senator asks, “and use this institution against the American taxpayer, or do you stand with the taxpayer?”

Don’t debate the facts, the hell with nuance, Cruz knows “there’s no incentive to ever really bother with reality.”

In the Import-Export Bank issue Cruz is, by the way, standing with the no taxes, ever Club for Growth, the billionaire Koch Brothers, the Tea Party Patriots, the Senate Conservatives Fund and Heritage Action for America. All are fervent practitioners of the politics of outrage and a governing strategy based on “NO.” The “corrupt Washington” Cruz attacks includes such obviously rotten Americans as Boeing, GE, the United States Chamber of Commerce and a small business guy by name of Michael Hess in little Malad, Idaho.

Hess wrote recently in the Idaho Statesman that the demise of the Export-Import Bank will damage his and other Idaho small businesses. “We’ve been mining, processing and distributing pumice in Idaho for almost 60 years,” Hess wrote. “And with the bank’s insurance, we’ve been expanding our business abroad. Our products are now distributed in 23 countries across six continents. Since 2009 alone, the bank has helped Hess Pumice generate more than $16 million in sales. That new revenue enabled us to hire more employees and further support the local economy.”

And Hess correctly nails the ideologues in his own Congressional delegation, elected officials more and more afraid or unwilling to stand up to the outrage caucus, which more and more takes its marching orders from conservative media. “Despite the bank’s obvious benefits,” Hess pointed out, “some critics want to keep it shut down. Senators Jim Risch and Mike Crapo, along with Representative Raul Labrador, are in this camp, contending that Ex-Im represents an unnecessary government intrusion into the private sector.”

It is worthy noting that Idaho’s other federal office holder, Congressman Mike Simpson, has not be part of the effort to stop the Ex-Im Bank. Simpson, the one Idaho Republicans to actually face a Tea Party-inspired opponent, who he beat handily, has often stood up against the most far out elements in his own party and attempted to be a legislator who governs. For that Simpson deserves bi-partisan praise.

Right wing media, particularly Fox, have created a political environment on the far right that disdains the type of reality that small businessman Michael Hess represents. Otherwise sensible people like Mike Crapo, who must know better, embrace the extremist line afraid to buck the hard, hard right and not surprisingly the wheels of government crank to a halt.

The Loudest Voice in the Room…

Reviewing Gabriel Sherman’s book on Fox and Boss Ailes last year in the New York Review – the book is appropriately entitled The Loudest Voice in the Room: How the Brilliant, Bombastic Roger Ailes Built Fox News – and Divided a Country – Steve Coll connected the dots this way: “Fox owes its degree of profitability in part to its most passionate, even extremist, audience segment. To win national elections, the Grand Old Party, on the other hand, must win over moderate, racially diverse, and independent voters. By their very diversity and middling views, swing voters are not easy to target on television. The sort of news-talk programming most likely to attract a broad and moderate audience—hard news, weather news, crime news, sports, and perhaps a smattering of left–right debate formats—is essentially the CNN formula, which Fox has already rejected triumphantly.”

When you tune into Thursday’s debate – how can you not tune in – in order to monitor the vitriol from Trump and Cruz and Walker and the rest, Roger Ailes, the majordomo of the outrage wing of the Republican Party, will be nowhere to be seen. But he’ll be there determining who plays and under what rules. He’ll be calling the shots, pouring the gasoline and fanning the fire. Like a good ventriloquist, Ailes no longer needs to move his lips in order to get the words to leave the mouth of an outraged Republican.

“Even inside Fox,” as New York Magazine reported last week, “some are awed that a presidential race is being influenced by a television channel. ‘Crazy stuff,’ another personality told reporter Gabriel Sherman, ‘you have a TV executive deciding who is in — and out — of a debate!’”

Who is the Dummy Here?

Edgar Bergen and his dummy Charlie McCarthy

Crazy stuff? Of course it’s crazy, but it’s also the reality Republicans have bought into by handing policy development and candidate vetting to Roger Ailes and a handful of other outraged voices who make a living trying to blow things up. Jackie Calmes’ Shorenstein report quotes another exasperated Republican as saying of the right wing media, “they don’t give a damn about governing.”

Edgar Bergen, the brilliant and elegant ventriloquist of my youth, had his Charlie McCarthy, a wisecracking dummy sitting on his knee. We all knew Charlie was just a wooden prop given life and opinions by the man with the hand in his back, but it was still an entertaining act. Roger Ailes now has his Republican Party in pretty much the same position. I leave it to you to complete the analogy as to who plays the dummy.

Truly defining moments are rare in our politics. They come around perhaps once a decade or so, but when they do occur they often signal a massive change in public attitudes, even to the point of taking a contentious issue off the political table or redirecting the political trajectory of the country.

A defining moment…

The Supreme Court’s Brown v. Board of Education decision in 1954 signaling the beginning of the end of segregated public schools was such a defining moment even as many Americans continued to vigorously resist the direction set by the Court. Even opponents of the decision were hard pressed to deny that a political Rubicon had been crossed. “Separate but equal,” a legal standard in effect for more than half a century, would no longer pass Constitutional muster and the legal and moral authority of the Supreme Court was now behind that position.

More and more, Ronald Reagan’s election in 1980 is viewed as a defining moment in American politics. Conservative principles soared with Reagan’s election, Republicans captured the Senate and Reagan and subsequent conservative presidents were able to cement a conservative majority on the Supreme Court.

Defining Changes in American Politics…

After each defining moment, our politics changed. Support or opposition to the Brown decision or how a politician voted on the Civil Rights Act would now become the measure of where a politician stood on civil rights. Those on the losing side – Barry Goldwater for instance, would forever carry the distinction of opposing civil rights.

Reagan’s election ushered in a long period of reassessment of the size and scope of the federal government and helped shift the allegiance of many conservative white voters from the Democratic Party of Franklin Roosevelt to a Republican Party defined by the Gipper. We still feel the political pull and tug of all these moments.

The deeply engrained features of our political system – checks and balances, separation of powers, federal-state relations and intense partisanship – limit the opportunity for truly defining moments. But last week’s landmark Supreme Court decisions effectively settling two of the most contentious issues in current American life – the fate of the Affordable Care Act and the future of same sex marriage – show that the Court, perhaps more than legislators or presidents, now creates our defining moments.

Crispness of decision and clarity of direction rarely happen in our politics, but when it does occur it presents an equally rare moment when politicians, if they choose, can re-calibrate and re-position. This is such a moment.

The smart GOP presidential candidates will gradually begin to adjust their positions and rhetoric on Obamacare and same sex marriage knowing that, as one GOP consultant said after the same sex marriage ruling, “Our nominee can’t have serrated edges. Like it or not, any effort to create moral or social order will be seen as rigid and judgmental… Grace and winsomeness are the ingredients for success in a world where cultural issues are at the fore.”

Sharpening the serrated edges…

But the shrill anti-gay marriage, cultural warrior rhetoric of a Mike Huckabee or a Ted Cruz may in the near term do more to define the Republican Party for voters, particularly younger voters, than any subtle shifting of position and language coming from a Jeb Bush or a Chris Christie.

Texas Senator Ted Cruz

Cruz, a former Supreme Court clerk and an Ivy League educated lawyer should know better, but he’s saying in the wake of the same sex marriage decision that the Court’s ruling is not binding on anyone not specifically involved in the case before the Court. It’s a ridiculous and incorrect argument made, one assumes, simply to seek favor with those most opposed to the landmark decision. The same can be said for the phony argument that legalizing same sex marriage constitutes an assault on religious freedom. It won’t fly because it isn’t true.

Cruz’s approach is simply sharpening those “serrated edges” that can only cut the next GOP candidate. Cruz, Huckabee and a few of the other GOP pretenders obviously are unwilling or incapable of moving on from a defining moment, which just postpones the moment when the Republican Party begins to appeal beyond its Tea Party base.

The Texas senator notwithstanding, one or more of the other candidates can re-define themselves – if they choose – by deciding to appeal to the majority of Americans who support what the Supreme Court said about marriage and health care rather than continuing to cater to those Republican primary voters who want to continue the fight over issues that have now been settled. The one who does opt to re-define will be taking a calculated political risk, but it will be the kind of risk that may serve to separate the risk taker from a crowded field that increasingly will be seen by many voters as living in the past, or worse living in an alternative universe.

You can bet that the more skillful candidates in the GOP field – Bush, Christie and soon Ohio Governor John Kasich among them – are trying out this strategy and its talking points in front of a mirror somewhere. If they are not testing the talking points they’re preparing to lose another election next year.

Idaho, a state whose politics I know best, is also at such a crossroads. The overwhelmingly Republican legislature and the very conservative governor have vehemently opposed same sex marriage (and spent thousand of dollars to defend what we now know was an indefensible position) and have also refused to amend the state’s human rights statute to provide basic anti-discrimination protection to gay, lesbian and transgender citizens. Now that the United States Supreme Court has settled the same sex marriage issue, in effect nullifying Idaho’s Constitutional prohibition, the issues are clearer than ever.

All that is left is bigotry…

Richard Posner, a conservative U.S. Court of Appeals judge appointed by Reagan whose also teaches at the University of Chicago law school, has written one of the most insightful critiques of the various dissents in the recent same sex marriage case. Stripping away all the political smoke about protecting religious freedom, Posner writes, reveals that the only grounds for opposing same sex marriage, and I would add anti-discrimination protections for the LGBT community, is simply “bigotry.” Posner, pulling no punches and refreshingly so for a judge, also called Chief Justice John Roberts’ same sex marriage dissent “heartless.”

Judge Posner photo by Hugh Williams

“I say that gratuitous interference in other people’s lives is bigotry,” Judge Posner wrote in Slate. “The fact that it is often religiously motivated does not make it less so. The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners. Gay couples and the children (mostly straight) that they adopt (or that one of them may have given birth to and the other adopts) derive substantial benefits, both economic and psychological, from marriage. Efforts to deny them those benefits by forbidding same-sex marriage confer no offsetting social benefits—in fact no offsetting benefits at all beyond gratifying feelings of hostility toward gays and lesbians, feelings that feed such assertions as that heterosexual marriage is ‘degraded’ by allowing same-sex couples to “annex” the word marriage to their cohabitation.”

What possible reason can there be for Idaho legislators or those in a number of other states to continue to resist basic human and civil rights protections for gay, lesbian, bi-sexual and transgender citizens of their states? The only grounds, as Judge Posner says, is nasty and enduring bigotry – not a winning political position.

The value for a politician in seizing the opportunities presented by a defining political moment can be clearly seen in the actions of South Carolina Governor Nikki Haley regarding the future of the Confederate flag.

South Carolina Gov. Nikki Haley along with Sen. Lindsey Graham (R-SC) (R) and other lawmakers and activists delivers a statement to the media asking that the Confederate flag be removed from the state capitol grounds.(Photo by Joe Raedle/Getty Images)

A Washington Post profile of Haley proclaims that the governor made the move from “Tea Party star to a leader of the New South” when in the wake of the horrific murders of nine black Americans in a Charleston church she called for removal of the Confederate flag from the state capitol grounds.

The Post may overstate Haley’s transformation just a bit, but when the governor is quoted as saying, “This flag didn’t cause those nine murders, but the murderer used this flag with him as hate to do it…And this isn’t an issue of mental illness, this is an issue of hate,” she is certainly leading public opinion – transforming herself and the flag issue – at a moment of stark clarity about what should happen with the central symbol of white supremacy and bigotry.

The difficult things to do…

The most difficult thing to do in politics is to say “no” to your friends. The second most difficult thing is to take a risk stepping away from a divisive issue that has moved on. As a candidate you can chose to point a new direction or you can stir the disaffected by continuing to turn over the nasty residue of anger and defeat.

All the evidence is in: Americans increasingly feel comfortable with same sex marriage, young people overwhelmingly so, and many Republicans – three hundred prominent Republicans appealed to the Court to legalize gay marriage – are saying that it’s just time to acknowledge that reality. Republicans have spent much of the last six years doing everything possible to dismantle or destroy Obamacare without proposing any real alternative, while the polls tell us more and more Americans support the law. Now the question becomes whether one of the GOP candidates can lead the party out of its dismal swamp by risking a break with its most reactionary members or whether for one more election Republicans will keep looking back, while the times, the politics and the country move on.

Imagine one of the Republican candidates simply saying something like this on the marriage issue: “You know I understand the feelings of many of my friends on this issue, but I have also heard and understood what the highest court in the land and most of my young friends have to say. They’re saying that a same sex couple’s marriage just isn’t a threat to me and my marriage nor is at any kind of threat to you and your marriage. The couple living next-door – gay, straight, Christian, Jew, Mormon, atheist – in no way prevents me from embracing my religious beliefs. To say that it does is playing on fear and intolerance that is not my idea of America. The American ideal is inclusion, acceptance and respect, not bigotry. Those are the values that I embrace and I hope all Americans do, as well.”

I’m not holding my breath expecting to hear such a speech, but I am hoping. A basic rule of politics after all, and this applies particularly to the Republican presidential field, is to quit digging when you find yourself in a hole.

Love, dignity, commitment, communion and grace…

David Brooks, a thinking person’s conservative, offered a variation on this “seize the moment” idea when he suggested in his New York Times column that it was time for social conservatives to recalibrate their strategy after the Supreme Court decisions.

‘I don’t expect social conservatives to change their positions on sex,” Brooks writes, “and of course fights about the definition of marriage are meant as efforts to reweave society. But the sexual revolution will not be undone anytime soon. The more practical struggle is to repair a society rendered atomized, unforgiving and inhospitable. Social conservatives are well equipped to repair this fabric, and to serve as messengers of love, dignity, commitment, communion and grace.”

That is an important and principled thought. A serious and conservative political leader could do a lot of good for the country by embracing it.

Take your pick: The profound political divides in the United States are to be found in the Supreme Court’s majority opinion granting Constitutional protection to those of the same sex who seek to marry and in the four dissenting opinions that blast that finding.

It’s dangerous to predict the historic importance of a single Supreme Court decision, but I’ll fearlessly hazard a guess that the decision on Obergefell v. Hodges – remember those names – will be remembered fifty or a hundred years from now along side Brown v. Board of Education, the historic decision that ruled “separate but equal” unconstitutional.

One major difference in the two decisions separated by sixty-one years is that Brown was decided by a unanimous Court, while Obergefell was decided by a Court profoundly divided. Chief Justice Earl Warren’s judicial leadership helped create that earlier landmark civil rights decision in 1954. Chief Justice John Robert by contrast wrote the dissent in a decision decided 5-4.

The opinion and dissents will be picked over and analyzed for years, but at first blush I am struck by two things: the Court majority’s embrace of marriage as a fundamental right guaranteed by the 14th Amendment (in the same way the Warren Court applied the Constitution to public schools) and the minority’s fierce condemnation of the Court’s overreaching by taking a divisive social and, to some, religious issue out of the hands of elected politicians.

Justice Anthony Kennedy

Justice Anthony Kennedy – the real Chief Justice at least on this issue – wrote in the Court’s decision: “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution [here Kennedy quotes from an earlier Court decision] “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

Kennedy was truly eloquent elsewhere in his opinion in describing the institution of marriage, but the paragraph above is the heart of his argument – certain rights in our democracy and under our Constitution simply cannot be left to the “vicissitudes” of politics. Rights are rights, Kennedy says, the Constitution guarantees those rights no matter what a legislature in Idaho or an appeals court in Texas might say.

Roberts in his dissent seemed almost unable to restrain his contempt for Kennedy’s reasoning about fundamental rights. “Understand well what this dissent is about,” Roberts wrote. “It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

Chief Justice John Roberts

Roberts and the Court’s other dissenters argued for leaving the decision to those Idaho legislators even at the risk of creating a vast and confusing landscape of law related to one of society’s most fundamental institutions.

[You might be excused for remembering that Roberts had no reservations about having “five lawyers” overrule the overwhelming majority of the United States Congress when the Court gutted the enforcement provisions of the Voting Rights Act. Emerson’s famous line comes to mind: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines…Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day.”]

Roberts may have accomplished one thing with his passionate dissent – his opinion upholding Obamacare is suddenly off the front page. The staunch conservatives who criticized him yesterday for siding with the president on health care can now view Roberts as rehabilitated with his dissent on same sex marriage.

Justice Antonin Scalia, of course, went even farther in his dissent. “When the Fourteenth Amendment was ratified in 1868,” Scalia wrote in his dissent, “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” In other words, in Scalia’s judicial view, nothing at all has changed since Andrew Johnson sat in the White House.

And there is more that I quote at some length because, well, because Justice Scalia is a man of words and often pungent, even nasty words.

Justice Antonin Scalia

“The opinion is couched in a style that is as pretentious as its content is egotistic”, Scalia wrote. “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; [as many of his dissents have been accused of containing] it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. ‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.’ (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”

Whew.

Remember that it was just over a decade ago that Karl Rove engineering George W. Bush’s two elections, at least in part, by embracing a strategy of placing polarizing anti-same sex marriage issues on many state ballots and endorsing a Constitutional amendment to outlaw gay marriage. Since then opinion has moved so quickly on the issue that it was perhaps inevitable that the Court would follow that opinion and codify what a solid majority of Americans now embrace. Still that political evolution makes Justice Kennedy’s decision no less historic. As President Obama correctly noted after years of incremental change; change that most of the time seems so very slow to so very many, justice can come like “a thunderbolt.”

Another fearless prediction: When the history books record the importance of Obergefell v. Hodges in 2015, the words “landmark” and “historic” will be attached. The decision will be remembered for expanding rights for a significant and deprived group of American citizens under their Constitution. Scalia’s dissent will be remembered, if at all, as an artifact of a different country and a different time and, of course, for its outrageous bombast.